Mass. high court rules that agency can ban foster parents who spank

Posted
Monday, January 4, 2016 11:14 am

By Michael P. Norton

State House News Service

BOSTON &GT;&GT; The state's highest court on Monday upheld the Department of Children and Families' 2013 decision to deny the application of potential foster parents because of their use of corporal punishment as a form of discipline in their home.

Gregory Magazu and his wife, Melanie, of Fitchburg, had appealed a Superior Court judgment that dismissed their appeal of a DCF decision, arguing the decision "is not supported by substantial evidence where they were willing to agree not to use corporal punishment on a foster child."

The Magazus, who have two young daughters, also had contended that "because physical discipline is an integral aspect of their Christian faith, the department's decision impermissibly infringes on their constitutional right to the free exercise of religion."

In a decision written by Justice Francis Spina, the Supreme Judicial Court affirmed the Superior Court judgment.

"Although the department's decision imposes a substantial burden on the Magazus' sincerely held religious beliefs, this burden is outweighed by the departments compelling interest in protecting the physical and emotional well-being of foster children," the court wrote.

DCF had asked the Magazus about their parenting experiences and attitudes, including methods of discipline. The couple stated they "have used physical discipline on their daughters," and that such discipline is "appropriate when there is a continuous pattern of disobedience," according to the court. "More specifically, they explained that their parenting style includes 'spanking on the buttocks, using Greg or Melanie's hand, in the privacy of their bedroom so that [the children] are not humiliated in front of others.' "

After an evidentiary hearing, a hearing officer in 2013 affirmed the DCF's decision in the case, stating that the department "expressly prohibits" the use of corporal punishment on foster children and the department's "clinical practice" prohibits exposing foster children to the use of corporal punishment on other children in a household. The hearing officer noted "children placed by the department have been exposed to an array of neglect and abuse, and their awareness of acts of corporal punishment in their foster homes 'could well trigger the very trauma the placement was intended to mitigate.' "

Spina drew a line between religious beliefs and actions.

"Contrary to the Magazus' suggestion, this case is not about their freedom to believe particular religious tenets, including those pertaining to the raising and disciplining of children," he wrote. "Rather, these proceedings are about specific conduct — corporal punishment — that is and would continue to be used in the Magazus' home even if they became foster parents. To the extent that the department may have infringed on the Magazus' constitutional rights, such infringement is on their freedom to act, not on their freedom to believe."

In a concurring opinion written by Justice Robert Cordy, with Justices Margot Botsford and Fernande Duffly, Cordy said the department's responsibility to children already exposed to abuse or neglect is "very substantial."

But Cordy also questioned the uniformity of DCF's application of its foster parent suitability standards across its western region and "the consistency of the rigor it applied to the plaintiffs' application compared to the applications of others who posed significant risks to the compelling interests the department is charged with protecting."

Regarding the Magazus, the justices wrote that "it is apparent from the record that in every respect (but for one) they were ideal foster and pre-adoptive candidates. They had a very stable home environment, a nurturing supportive relationship with their own two children, and an excellent record of employment and community involvement."

Cordy wrote: "The department conceded that there was no reason for the department to doubt the sincerity of the plaintiffs, but wanted additional assurances (beyond what was required in its regulations and its contract) that the plaintiffs would not physically discipline their own children during periods when they had foster children in their care. The plaintiffs could not agree to this condition because of their religious views, but advised that they did not physically discipline either of their children in the presence of the other and would not do so in the presence of the foster children in their care. This apparently was not good enough, and the department found that the plaintiffs did not meet the department's licensing standards because they physically disciplined their own children."

In another excerpt from his concurring opinion, Cordy wrote, "One is left to wonder, however, whether the real problem in this case was not so much the department's concern for child safety, but rather a disagreement with the plaintiff's beliefs regarding the upbringing of their children. While we have no other licensing investigation files in the record before us, it is hard to ignore the highly public tragedies of the last two years regarding children under the supervision of the department in foster homes, and not to question whether the high standards and intensive assessment and scrutiny applied to the plaintiffs is the exception rather than the norm, particularly in the western region."

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